Gujarat High Court
Rameshbhai Dayalbhai Lashkari & vs State Of Gujarat & on 11 January, 2018
Author: S.G. Shah
Bench: S.G. Shah
R/CR.RA/35/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER
PASSED BY SUBORDINATE COURT) NO. 35 of 2017
With
CRIMINAL REVISION APPLICATION NO. 37 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH Sd/
=======================================================
1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of Yes the judgment ?
4 Whether this case involves a substantial question of Yes law as to the interpretation of the Constitution of India or any order made thereunder ?
======================================================= RAMESHBHAI DAYALBHAI LASHKARI & 1....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ======================================================= Appearance:
MR.VM DHOTRE, ADVOCATE for the Applicant(s) No. 1 2 MR.MAYUR V DHOTARE, ADVOCATE for the Applicant(s) No. 1 2 MR.HARDIK J JANI, ADVOCATE for the Respondent(s) No. 2 MR.MANAN MEHTA, APP for the Respondent(s) No. 1 ======================================================= CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 11/01/2018 COMMON CAV JUDGMENT
1. Heard learned advocate Mr.V.M. Dhotre for the Page 1 of 29 HC-NIC Page 1 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT petitioner, Mr.Hardik Jani, learned advocate for respondent No.2 and Mr.Manan Mehta, learned APP for the respondent - State in both the petitions. Perused the record.
2. Since the common issues are raised in both the petitions; so also impugned order in both the petitions is common being order dated 20.4.2017 below Exhs.4 and 5 in Sessions case No.30/2014 by the Additional Sessions Judge of Gandhinagar, they are dealt with and decided by this common judgment.
3. The petitioners in Revision No.35/2017 are accused nos.1 and 2 whereas petitioner in Revision No.37/2017 is accused No.3 in such Sessions case No.30/2014. Accused nos. 1 and 2 have preferred common application at Exh.4 and accused No.3 has preferred separate application at Exh.5 before the Sessions Court with almost same facts and pleadings and prayed for similar relief to reject the complaint against them and to discharge them for want of prior permission Page 2 of 29 HC-NIC Page 2 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT to prosecute them by competent authority. Therefore, except different accused number and different Exhibit when impugned order against all of them is common, now, they are referred as accused and both the petitions are disposed off by this common judgment.
4. The sum and substance of petitioners in their application below the Sessions Court in this Revision petition is to the effect that they are serving in police force. They have investigated and chargesheeted respondent No.2 for the offences punishable under sections 66(B), 65(A) and section 20(B) of the Narcotic and Psychotropic Substances Act, 1985 (For short hereinafter referred as `NDPS Act') based upon a complaint received by accused No.2 that there is stock of Charas in the shop of respondent no2 and, therefore, on directions being issued by DSP, all the petitioners had with other staff raided a shop of respondent No.2 and based upon their inquiry and investigation, they have filed chargesheet against respondent No.2. When respondent No.2 was tried for such offences by the Page 3 of 29 HC-NIC Page 3 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT Sessions Court, Gandhinagar, by its judgment and order dated 14.2.1991, the then Additional Sessions Judge of Ahmedabad (Rural), Ahmedabad has while acquitting the respondent No.2 herein from all the charges levelled against him has made certain serious observations against present petitioners. Judgment dated 14.2.1991 of such Sessions case No.27/1990 is at Annexture `A'.
However, even before such judgment, respondent No.2 herein has already lodged a private complaint which is initially numbered as inquiry case No.9/1990 on 4.1.1990 under sections 182,193, 195, 211, 342, 452 and 120(B) of IPC read with section 147 of Bombay Police Act against known persons alleging that NDPS case against him is got up and the Muddamal recovered from his shop was planted which is to took him under NDPS Act. On such complaint, on 4.1.1990, the learned JMFC, Gandhinagar has ordered the CID Crime of Ahmedabad to investigate the alleged offences in such complaint under section 156(3) of the Code of Criminal Procedure, 1973 (For Short `Code') and to file its report within 30 days before the Court. It seems that the report Page 4 of 29 HC-NIC Page 4 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT was filed only on 8.5.1999 by the Investigating Agency, however, in such report Investigating Agency has submitted `C' summary report as if there is no offence committed by anyone. Meanwhile, in its judgment dated 14.2.1991, the Sessions Court has categorically observed in para 26 that the information received regarding accused No.2 is part of some conspiracy and that petitioner No.2 has not made any entry of such information in control room and his explanation that recording of such evidence in control room would result into leakage of information because he does not trust the staff of control room cannot be accepted and, thereby, there is absolute violation of section 41 of the NDPS Act. The Sessions Court has also recorded that the police department has already grudged against respondent No.2, though on 7.6.1989, landlord of the respondent No.2 has pushed the respondent No.2 from the roof of the shop and that respondent No.2 has sustained fracture, the police has not included charges under section 325 and that respondent No.2 has already on 2.1.1990 filed a complaint (Exh.447 before the JMFC, Page 5 of 29 HC-NIC Page 5 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT Gandhinagar) against the landlord for taking the law in his hands to get the rented shop vacated and, therefore, respondent No.2 has to file a civil suit for restraining the landlord from disturbing his possession wherein he succeeded. It is also alleged by the respondent No.2 that since he is elected member of the Pethapur Nagar Panchayat and taking care of public interest and fighting against anti social elements by open confrontation, such behaviour does not suit him. It is also alleged by him that he was Secretary of Pethapur Commerce Association but in the village illegal activities like selling of liquor, Worli
- Matka and Gambling was openly being carried out under the protection of the police and when he has addressed a letter to DSP wherein in fact he has invited trouble for himself from such persons. It is also contended that though work was approved for kota stone to be laid down in the village Pethapur, when rough stones were installed and thereby when road was not proper, he has submitted a statement of objection at Gandhinagar and, therefore, some of the officers were also annoyed upon him. Several other instances are Page 6 of 29 HC-NIC Page 6 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT narrated which may not be necessary to be reproduced herein just to avoid bulkiness of this order. However, fact remains that it is the say of the respondent No.2 before the Sessions Court in his defence that since he has tried to fight against the erring officers and system, he has been conveyed that he would be booked in a case where he will get long imprisonment and to fulfill such aim, a false complaint was registered against him by planting narcotic drugs as alleged and threatened to him so as to see that he may not be released either on bail or may not be acquitted. In such background, the observations of the Sessions Court is much material when it is observed that even FIR was not properly disclosed before the Court and entire investigation and proceeding has been carried out against the settled legal provision, procedural law and there are several irregularities in investigation and provision of Sections 41 and 42 of the NDPS Act has been violated openly and, thereby even raid is illegal. The Sessions Court has recorded several contradictions in procedure of sample so also it seals etc. within evidence of prosecuting investigating officer, petitioner No.1 Page 7 of 29 HC-NIC Page 7 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT herein and the officers of the FSL. Therefore, the Sessions Court has observed that relying upon the evidence adduced on record, it seems that the Muddamal drugs were not recovered from the shop of the respondent No.2 but it was planted there only with a view to involve the respondent No.2 in such a case, because respondent No.2 is well known person of the village and there is conspiracy against him. While saying so, the Sessions Court has made it clear that it would not be enough to acquit the accused when investigating officer and corrupt police officers have infringed the human rights and liberty of a gentleman and vigilant citizen who has tried to crack the conspiracy of corrupt officers and that too when respondent No.2 was arrested during pious days of Diwali when he has to remain behind the bars on Dhanteras and Kali Chaudas. To set an example in the system, necessary order is required to be passed against erring officers. The Sessions Court has appreciated that if it is not done, the petitioners may not control themselves and may involve respondent No.2 again by planting Charas through customers of Page 8 of 29 HC-NIC Page 8 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT respondent No.2 and, thereafter, they may disturb the respondent No.2 again. The observations of learned Sessions judge in last line of para 33 is quite clear which goes to show that the respondent No.2 was taken on remand for 5 days and if he was not released on bail, probably he would have to remain in custody pending trial and, therefore after such evidence if erring officers are allowed to let go then conscious of the Judge would be disturbed. This goes to show that the Sessions judge has during the trial found certain things which makes him to observe seriously against the petitioners and to pass the order that since no inquiry has been completed as per complaint of respondent No.2 as per Exh.44 and, therefore copy of this judgment was forwarded to the DGP, Gandhinagar for doing the needful.
5. Therefore, practically when Investigating Agency and learned Judicial Magistrate First Class which were dealing with the complaint of the respondent No.2 they were bound to consider such aspect, but it seems that they have failed to do so.
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6. In any case, the fact remains that order dated 30.9.2006 whereby, learned JMFC, Gandhinagar has accepted the `C' summary, was challenged by the respondent No.2 before the Sessions Court at Gandhinagar in Criminal Revision Application No.24/2007. By its detailed judgment dated 31.1.2008, the Sessions Judge of Gandhinagar has while allowing Revision petition quashed and set aside the order dated 30.9.2006 in inquiry case No.9/1990 whereby `C' summary was allowed against the petitioner with a direction to the trial judge to issue appropriate process in accordance with law keeping in mind the gravity of the offences in such Case being inquiry case No.9/1990. Copy of such judgment is at Annexure `D' collectively with copy of Revision petition. The learned Sessions Judge has in such judgment dealt with the issues while allowing the Revision applications.
7. It is to be recollected here that pending such proceeding pursuant to directions by the Sessions Court Page 10 of 29 HC-NIC Page 10 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT in its judgment dated 14.2.1991 in Sessions case No.27/1990, departmental proceedings were initiated against petitioners wherein atleast one of the petitioners namely; Jabbarali Mithamiya Saiyed, petitioner No.2 herein was found guilty. Therefore, the learned Additional Sessions Judge has, while deciding the Revision considered such fact taking a serious view that when person is found guilty even in proceeding wherein burden of proof is less than criminal trial then how it can be said that there is no case against such person and to that extent, acceptance of `C' summary filed by the CID crime cannot be allowed and, therefore, pass an order to issue process against the petitioners.
8. Pursuant to such development, case was registered against the petitioners and same was committed to the Court of Sessions whereby Sessions case No.30/2014 has been registered against the petitioners for the offences punishable under sections 182, 193, 195, 211, 147 and 120(B) of the IPC. In such Sessions case, petitioners have filed an application at Page 11 of 29 HC-NIC Page 11 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT Exh.4 and 5 contending that they being public servants, no Court can take cognizance against them in absence of prior sanction as provided under section 197(2) of the Code since they were members of the raiding party and investigating team and, therefore, whatsoever they have done during the investigation and raid was part of their duty. However, the Sessions Court has by its reasoned order which is impugned in this petition rejected such application contending that case law relied upon by the petitioners is not applicable to the present case and that order dated 31.1.2008 in Criminal Revision Application No.24/2017 whereby Sessions Court has directed to issue summons against the petitioners has not been challenged by the petitioners so also when petitioners have never bothered to challenge the observations against them by the Sessions judge of Ahmedabad (Rural) in its judgment dated 14.2.1991 in Sessions case No.27/1989, it cannot be accepted that prior sanction to prosecute the petitioners is must.
9. In above factual background, learned advocate Page 12 of 29 HC-NIC Page 12 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT Mr.Dhotre has relied upon the factual part of the case and submitted that petitioners were public servants when they were acting as such and, therefore, when they are in service, it cannot be said that they should be prosecuted without prior permission of the competent authority. In support of such submission, petitioners are relying upon provision of Section 197 of the Code. It is undisputed fact that pursuant to provision of such section, no Court shall take cognizance of such offence except with the previous sanction of the concerned competent authority as prescribed in such section. It is also undisputed fact that so far as petitioners are concerned, they being public servants being members of the police force, in general, prior permission of the State Government is required, but it is also very much clear that such sanction is required only if any such person is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Therefore, the basic requirement of the prior sanction to prosecute public servant is involvement in any offence which he has committed while acting or purporting to act Page 13 of 29 HC-NIC Page 13 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT in the discharge of his official duty. Therefore, if any act which is not done to discharge any official duty then prior sanction is not required. Considering the services of the petitioners herein the simple example would be a complaint of murder during custodial death may require scrutinizing factually that whether act was performed or purported to discharge the official duty or not and if there is reason or evidence to show that act by which victim was killed could not be considered as an act purported to be or done in discharge of official duty, then, certainly, there may not be necessity of prior sanction. However, if death of a victim during custody is result of any official act by any police officer, then, there may be necessity of prior sanction of competent authority. Whereas in the case of a death of any human being by any person who is otherwise serving in police department but not during his official duty as such, could never be considered as an act for which he cannot be prosecuted without prior sanction. Similarly, the basic scrutiny would be the factual act which amounts to an offence to verify that whether such act was purported or Page 14 of 29 HC-NIC Page 14 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT done in discharge of official duty or not. In view of such clarity, now, the only question which requires consideration is that whether planting of narcotic drugs in the premises of any civilian, more particularly, when he was already given a threat that he would be either thrown out from the rented premises or he would be booked in a case where he may not be released even on bail and may be sentenced for more than 10 years by way of planting narcotic substance in premises of his control and more particularly when such person has objecting against illegal activities and irregularities of several charges including police authority and, thereafter, when Sessions Court has observed against the present petitioner that their activities are nothing but irregularities in investigating a case of NDPS against respondent No.2 committing illegality during the raiding the premises of respondent No.2, not disclosing the correct facts to the concerned authorities at relevant time, goes to show that act committed by the petitioners can never be considered as an act purported to be done or done in performing their official duty. Because by any Page 15 of 29 HC-NIC Page 15 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT stretch of imagination it can never be said that planting narcotic drugs at the premises of innocent citizen is an official duty, though force was made in the form of official duty during raid and chargesheeting such person. Therefore, the basic issue and complaint by respondent No.2 is not with reference to investigation and harassment in the form of investigation and trial, but his main allegation is with reference to the observation by competent Court that drugs were planted and in that case, now in fact it is for the Investigating Agency and for present petitioners to find out that who has planted narcotic drugs. Whereas, now the fact remains that at least proceeding for such allegations against petitioner No.2 has been over while he was found guilty and, therefore, there is prima facie evidence against petitioner No.2 and thereby if the Investigating Agency and the complaint by respondent No.2 so also present petitioners could not disclose that who are real culprits who actually planted the narcotic drugs or on whose instruction it was planted, then, at least the petitioner No.2 and his colleagues who were members of the raiding party and Page 16 of 29 HC-NIC Page 16 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT who had not followed the statutory provisions during this raid would certainly be treated as conspirators and executor of such conspiracy and, therefore, when they have not challenged the two judgments of Sessions Court against them, then, now they cannot say that their act was official and therefore they should not be tried without prior sanction because when Sessions Court has ordered to issue process against them, it was the duty of the prosecuting agency to get prior sanction if at all it is required but if prosecuting agency though they have filed summary report did not follow the order of the Sessions Court in its proper perspective then order of the Court may not be alleged to be nullity by in fact negligence or carelessness of such agencies. In any case, the act of planting narcotic drugs at the place of innocent citizen can never be termed as an official duty for which prior sanction is warranted to prosecute such persons. If at all, all the conspirators are not identified by the Investigating Agency, then the persons i.e. present petitioners who are available and who have helped in the conspiracy to book the respondent No.2 under NDPS Act can never escape Page 17 of 29 HC-NIC Page 17 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT their liability of being chargesheeted and tried by competent Court in accordance with law. It would be open for the petitioners to disclose the name of real conspirator so as to join them as an accused and to punish them also but it is the choice of the Investigating Agency against present petitioners that they have never bothered to investigate on such issue.
10. Learned advocate for the petitioners is relying upon following decisions: (1) Matajog Dobey v. H.C. Bihari reported in AIR 1956 SC 44 wherein while dealing with section 197 of the Code, Hon'ble Supreme Court has observed that offence alleged to have been committed must have something to do with or must be reacted in some manner with the discharge of official duty and there must be a reasonable connection between the act and the discharge of official duty. Therefore, the act must set relation to the duty that the accused could lay a reasonable claim that he was performing his official duty but not a pretended Page 18 of 29 HC-NIC Page 18 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT or fanciful claim that he did it in the course of the performance of his duty. Therefore, on the contrary, such judgment is clearly against the petitioners inasmuch as in the present case though they are submitting that raiding and investigation was part of their duty, what is material to be considered here is that from the initial point of getting secret information, the petitioners have started the act in irregular and illegal manner when they have not followed the provision of the NDPS Act and they tried to submit only that disclosure of fact to competent officer may leak the information and, therefore, they have not disclosed it. But thereafter when it was found that entire raid was concocted one and narcotic drug was planted and more particularly when there was prior threat given to respondent No.2 that if he does not surrender to his landlord and such officers against whom he has submitted his objections, then, he may be booked under NDPS Act even by planting drugs. It is very much necessary for the petitioners to come out from such allegation during investigation.
Page 19 of 29 HC-NIC Page 19 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT (2) R.Balkrishna Pillai v. State of Kerala reported in 1996(1) SCC 478 wherein Hon'ble Supreme Court has held that the sanction is required even against the Minister because he is public servant. However, there is no dispute about such proposition but the crucial consideration is the manner of act performed by the accused which is quite different in the present case as discussed in this judgment. Therefore, this citation would not help the petitioners. .
(3) Sureshkumar Bhikamchand Jain v. Pandey Ajay Bhushan reported in 1998 (1) SCC 205 wherein Hon'ble Supreme Court has held that the question of sanction can be considered at any stage of the proceedings. Again, there may not be any issue regarding such legal proposition but I do not see any reason or concern of such judgment at this stage when issue is altogether different before us.
(4) Rakesh Kumar Mishra v. State of Bihar reported in AIR 2006 SC 820 wherein Hon'ble Supreme Court has Page 20 of 29 HC-NIC Page 20 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT held that though the allegations about the alleged offences at their matrix on the absence of search warrant, the other circumstances noted above had a determinative role in the issue. Therefore, such other circumstances are material for considering such decision. On scrutiny of the judgment with due respect, I could not find out any such other circumstances but in any case, because of such determination it becomes clear that there is no rule of law that sanction is must and if there is reason to believe that the offence committed by the accused is not pertaining to his official duty then no sanction is required. In the cited case though the order of taking cognizance is quashed and set aside, the Hon'ble Supreme Court has no option but to record that effect of the events which has no relevance can be considered at the appropriate stage and that the view expressed by the Court is only in respect of applicability of Section 197 of the Code and not with reference to the factual details and, therefore, it cannot be said that pursuant to such judgment sanction is must in all cases irrespective of factual details.
Page 21 of 29 HC-NIC Page 21 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT (5) Sankaran Moitra v. Sadhna Das reported in 2006(2) SCC (Cri) 358 wherein larger bench of Hon'ble Supreme Court has held that question as to applicability of Section 197 may arise at any stage and when appellant before the Hon'ble Supreme Court committed the act in question during the course of performance of his duty to control the mob to stop disturbance at the polling booth, sanction under Section 197 is necessary to prosecute him. However, the dissenting view in that judgment also confirms that if somebody acts illegally, unlawfully and highhandedly and if his act could not be said to be an act to discharge of official duty then Section 197 would not be attracted since protection under section 197 is qualified and conditional. Therefore, if the act complained of has no nexus, reasonable connection or relevance to the official act or duty of the public servant and is otherwise illegal, unlawful or in the nature of an offence then protection would not be available. Considering the factual details of cited case and present case, it becomes clear that in cited case, the persons were Page 22 of 29 HC-NIC Page 22 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT trying to control the mob at polling booth where some one died whereas in our case, petitioners have raided the premises of respondent No.2 who was facing threats of similar nature that his house would be raided and he would be booked under NDPS Act so as to see that premises can be vacated and he may have to undergo long imprisonment and thereafter when during the trial even Sessions Court has observed that activity of raid was illegal and without authority of law, the act of the petitioner can be considered as illegal, unlawful and if such act falls within the definition of any offence, then, there may not be protection under section 197. Therefore, when question is for consideration before the Court as to applicability or otherwise of section 197 of the Code, it is not only the power but the duty of the Court to apply its mind to the effect and situation before it so as to ascertain that appropriate action would be allowed to be taken if the provision is not attracted and nobody is allowed under the acts that his position as public servant to take undue advantage.
Page 23 of 29 HC-NIC Page 23 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT (6) D.T. Virupakshappa v. C. Subash reported in 2015(12) SCC 231 wherein allegation is of excessiveness of police connection with the investigation of a criminal case and, therefore, Hon'ble Supreme Court has held that it has reasonable connection with the performance of official duty. However, there is difference between the performing with excessive zeal and performing in illegal and irregular manner. Therefore, considering the factual difference between two cases, this judgment is also not helpful to the petitioners.
(7) So far as which is competent authority to grant sanction is concerned, though the respondents have taken a stand that the sanctioning authority is not competent to grant sanction, learned advocate for the petitioner is relying upon the case of Bhikhaji Vaghaji v. L.K. Barot, 1981 GLH 157 which confirms that pursuant to notification dated 15.5.1974, the government of Gujarat has notified to apply the provisions of sub Section (2) of Section 197 to its police officers. Therefore, that dispute is now not much material. Page 24 of 29 HC-NIC Page 24 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT
11. As against that, respondent No.2 has rightly pointed out that in fact the judgment of Sessions Court dated 14.2.1991 in Sessions Case No.27/1990 wherein there are strictures against the petitioner and direction to proceed further against them in the complaint filed by respondent No.2, was challenged before this High Court by filing Criminal Appeal No.297/1991. However, such appeal was summarily dismissed by judgment and order dated 26.11.1991 by Division Bench of this High Court wherein even leave was also refused to admit such appeal. Against such refusal to grant leave to lodge an appeal by the State instead of State of Gujarat being prosecuting agency, the present petitioner No.1 has preferred Criminal Misc. Application No.2420/1993 wherein Hon'ble Supreme Court has instead of entertaining the petitioner to expunge the observation against them by the Sessions Court, disposed of all the matters observing that petitioner may seek his remedy before the High Court for expunging strictures passed against him and in that case, such petition is disposed of Page 25 of 29 HC-NIC Page 25 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT by the High Court expeditiously in accordance with law. Therefore, the fact remains that an attempt by the petitioner to expunge the remarks against him could not be succeeded when it was tried to be done through State Government and fact remains that though Hon'ble Supreme Court has so observed, petitioner has not challenged the order of Sessions Court so as to expunge strictures against him. Therefore, strictures and directions in the judgment by Sessions Court as back as in 1991 remains unchallenged and, thereby it becomes final and, therefore, now petitioner cannot get the benefit of the protection under section 197 when Sessions Court has already determined that act of the petitioners are irregular and illegal in raiding premises of respondent No.2 since narcotic drug was planted in his place.
12. Learned advocate for the petitioners is relying upon the decisions by Hon'ble Supreme Court between P.K. Pradhan v. State of Sikkim reported in 2001 SC 2547 and Fakhruzamma v. State of Jharkhand Page 26 of 29 HC-NIC Page 26 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT reported in 2013(15) SCC 552 wherein Hon'ble Supreme Court has held that to get protection under section 197, there must be reasonable connection between the act complained of and the official duty which can be decided only after adducing evidence and may not be at preliminary stage and, therefore necessity of sanction need not always be decided as preliminary issue and, thereby, question can be left open for decision on conclusion of trial. Thereby, what is held by the Hon'ble Supreme Court is to the effect that in some cases where act was performed in official capacity or not can be decided after scrutiny of available evidence and issue regarding protection under section 197 may be required to be kept open so as to consider it at any later stage. Whereas, Fakhruzamma (Supra), the Hon'ble Supreme Court has distinguished the judgment of Rakesh Kumar Mishra (Supra) on factual details.
13. In view of above facts and circumstances, it would be appropriate to keep the issue of sanction open for appropriate decision by the trial Court based upon the Page 27 of 29 HC-NIC Page 27 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT available evidence adduced by both the sides to prove their rival claim whereby petitioners are also free to prove on record that what they have done was to perform their official duty only. However, at such initial stage, when there are strictures and observation by Sessions Court in 1981 against the petitioners which remain uncontroverted till date in absence of its challenge and when other Sessions Court has in its judgment against report of `C' summary confirms such view, it would be inappropriate to discharge the petitioners at such initial stage, more particularly, when they have involved themselves in conducting the raid and investigation against respondent No.2 in irregular and illegal manner. Therefore, I do not find any substance in the Revision petitions and the same are dismissed. However, it is made clear that all discussion and observation in the judgment are only for the purpose of deciding such Revision petition against impugned order only and, therefore as observed in previous paragraphs, the raid of petitioners to prove that what they have done is in their official duty and, thereby to claim protection Page 28 of 29 HC-NIC Page 28 of 29 Created On Thu Jan 11 23:34:20 IST 2018 R/CR.RA/35/2017 CAV JUDGMENT under section 197 remains open till final determination of the Sessions case against them.
14. In view of above facts and circumstance, both these Revision Applications are dismissed in aforesaid terms. Rule is discharged.
. Sd/
(S.G. SHAH, J.)
* Kotecha
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